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*********************************************** 
TIMOTHY GRIFFIN v. COMMISSIONER

OF CORRECTION

(SC 20179)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The petitioner sought a writ of habeas corpus, claiming that the transfer of

his criminal case, which involved crimes that he committed when he

was fourteen years old, to the regular criminal docket from the docket

for juvenile matters, and his subsequent sentence of forty years imprisonment with no eligibility for parole, violated the prohibition against cruel

and unusual punishment as set forth in the due process provisions of

the Connecticut constitution (article first, §§ 8 and 9). The petitioner,

who had been convicted of felony murder and conspiracy to commit

robbery in the first degree, claimed that contemporary standards of

decency regarding acceptable punishments for children who engage in

criminal conduct have evolved for purposes of his constitutional claim,

relying on two recent modifications to the juvenile justice laws (P.A.

15-183 and P.A. 15-84) as evidence of this evolution. Public Act 15-183

raised the minimum age of a child whose case is subject to transfer

from the docket for juvenile matters to the regular criminal docket from

fourteen to fifteen years and further limited the types of felonies that

are subject to such a transfer. After the passage of P.A. 15-84, all persons

who are serving a sentence of more than ten years of imprisonment for

a crime or crimes that were committed as a juvenile, including the

petitioner, may be eligible for parole. In support of his habeas petition,

the petitioner claimed that P.A. 15-183 applied retroactively to all persons

currently serving an adult length sentence for a crime committed at

fourteen years of age. The habeas court granted the respondent’s motion

for summary judgment and rendered judgment thereon, from which the

petitioner, on the granting of certification, appealed, seeking to have

this court extend to this case the rationale in State v. Santiago (318

Conn. 1), in which the court held that the legislature’s prospective

repeal of the death penalty demonstrated that contemporary standards

of decency had evolved such that the imposition of the death penalty on

inmates convicted of capital felonies committed prior to that prospective

repeal violated the state constitution’s prohibition against excessive and

disproportionate punishment, and that the prospective repeal of the

death penalty applied retroactively to all death sentences. Held:

1. The passage of P.A. 15-183 did not signal a change in society’s evolving

standards of decency, and, accordingly, the transfer of the petitioner’s

case from the docket for juvenile matters to the regular criminal docket

for crimes he committed when he was fourteen years old comported

with such standards and did not violate the state constitution’s prohibition against cruel and unusual punishment: this court declined to extend

the rationale of Santiago to the present case in light of the different

circumstances presented in those cases, differences in the historical

development of public policies concerning the imposition of the death

penalty and the transfer of juvenile cases, and the fact that the legislature’s prospective repeal of the death penalty applied under all circumstances whereas P.A. 15-183 did continue to allow for the transfer of a

fourteen year old’s criminal case to the regular criminal docket under

very narrow circumstances; moreover, this court declined the petitioner’s invitation, in furtherance of his constitutional claim, to apply P.A.

15-183 retroactively to all persons currently serving an adult length

sentence for a crime committed at fourteen years of age.

2. The petitioner could not prevail on his claim that his sentence violated

the state constitution’s prohibition against cruel and unusual punishment

even after the provisions of P.A. 15-84 entitled him to eligibility for

parole after serving 60 percent, or twenty-four years, of his original

forty year sentence, this court having recently rejected similar claims

challenging the length of a sentence imposed after the transfer of a

juvenile’s criminal case to the regular criminal docket in State v.
McCleese (333 Conn. 378) and State v. Williams-Bey (333 Conn. 468),

and, accordingly, the Connecticut constitution did not entitle the petitioner to be resentenced for his conviction: unlike inmates serving life

sentences and functional life sentences with no possibility of parole,

the petitioner now will be eligible for parole after serving twenty-four

years, one year less than the mandatory minimum sentence for adults

convicted of felony murder, providing him with a chance for reconciliation with society and hope for his future; moreover, it was not practicable

to grant the petitioner’s request to reverse his judgment of conviction,

to vacate his sentence imposed twenty years ago and to order a new

trial, as the petitioner, who is now approximately thirty-five years old,

is unable to have access to the juvenile justice system and its associated

rehabilitation programs because of his age, and the parole board would

be the better venue for relief when the petitioner becomes eligible for

parole, at which time the board will consider various factors, including

his age and circumstances when he committed the crimes.

(One justice concurring in part and dissenting in part)

Argued January 17—officially released August 23, 2019*

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland, where the court, Sferrazza, J., denied the

petitioner’s motion for summary judgment, granted the

respondent’s motion for summary judgment and rendered judgment denying the petition, from which the

petitioner, on the granting of certification, appealed.

Affirmed.

John C. Drapp III, assigned counsel, for the appellant (petitioner).

Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Emily D. Trudeau, assistant state’s attorney,

for the appellee (respondent).
Opinion

KAHN, J. The issue presented in this appeal1is

whether the transfer of a fourteen year old defendant’s

case to the regular criminal docket and his subsequent

sentence of forty years imprisonment violate the prohibition against cruel and unusual punishment enshrined

in the dual due process provisions of the constitution

of Connecticut, article first, §§ 8 and 9. The petitioner,

Timothy Griffin, appeals from the judgment of the

habeas court rendered in favor of the respondent, the

Commissioner of Correction. The petitioner argues that

Connecticut’s ‘‘standards of decency’’ regarding acceptable punishments for children who engage in criminal

conduct have evolved. That evolution, the petitioner

contends, has rendered both the transfer of a fourteen

year old defendant’s case to the regular criminal docket

and the resultant sentencing as an adult unconstitutional, in violation of the state prohibition against cruel

and unusual punishment.2 The respondent claims that,

because recent statutory modifications to the juvenile

justice system do not reflect changes in contemporary standards of decency, the habeas court properly

granted the respondent’s motion for summary judgment. The respondent specifically cites to No. 15-183

of the 2015 Public Acts (P.A. 15-183), which, inter alia,

raised to fifteen years the age of a child whose case is

subject to transfer to the regular criminal docket from

the docket for juvenile matters, and to No. 15-84 of

the 2015 Public Acts (P.A. 15-84), which makes certain

individuals eligible for parole. We agree that recent

statutory changes to the juvenile justice system—which

significantly limit, but do not entirely prohibit, the transfer of a fourteen year old defendant’s case to the regular

criminal docket—do not evidence a change in contemporary standards of decency for purposes of the constitutional claim raised by the petitioner in the present

case. We also conclude that, because the petitioner is

eligible for parole pursuant to P.A. 15-84, his forty year

sentence complies with established constitutional safeguards. Therefore, we affirm the judgment of the habeas

court.

The record reveals the following relevant facts and

procedural history. In December, 1997, the then fourteen year old petitioner was arrested in connection with

the murder of a grocery store owner during an armed

robbery. The petitioner and an accomplice donned

masks and entered the grocery store, where the petitioner shot and killed the store owner. The perpetrators

then emptied the cash register and fled. Afterward, the

petitioner ‘‘bragg[ed] about shooting the owner of the

store . . . .’’ At the time of the crime, the petitioner

had been removed from the normal school curriculum,

placed on juvenile probation, and required to wear an

electronic bracelet to monitor his location because,

allegedly, he had assaulted a teacher. The petitioner’s
case was automatically transferred to the regular criminal docket pursuant to General Statutes (Rev. to 1997)

§ 46b-127 (a). In 1999, he entered open guilty pleas to

felony murder in violation of General Statutes (Rev. to

1997) § 53a-54c and conspiracy to commit robbery in

the first degree in violation of General Statutes §§ 53a48 and 53a-134 (a) (2). He received a total effective

sentence of forty years imprisonment. At that time, the

petitioner was not granted the possibility of eligibility

for parole.

In the petitioner’s first habeas action in 2007, the

habeas court found that the petitioner failed to prove

that his pleas had not been entered knowingly, intelligently and voluntarily but rendered judgment in his

favor on his claim of ineffective assistance of counsel

and restored his right to file for sentence review. In a

per curiam decision, this court affirmed the judgment

of the habeas court. Griffin v. Commissioner of Correction, 292 Conn. 591, 597, 973 A.2d 1271 (2009). Subsequently, upon the petitioner’s application for review,

the Sentence Review Division of the Superior Court

found that the sentence imposed was ‘‘neither inappropriate [nor] disproportionate.’’ State v. Griffin, Docket

No. CR-97-135279, 2010 WL 1794692, *2 (Conn. Super.

February 23, 2010).

After filing and then withdrawing a second habeas

petition, the petitioner filed the petition for a writ of

habeas corpus that is the subject of this appeal.3 The

parties filed cross motions for summary judgment, and

the habeas court granted the respondent’s motion.4 The

habeas court then granted the petitioner’s petition for

certification to appeal in September, 2017. See General

Statutes § 52-470 (g). This appeal followed.

This appeal presents issues of constitutional interpretation and statutory construction, which are matters of

law subject to our plenary review. See, e.g., General

Statutes § 1-2z; Tannone v. Amica Mutual Ins. Co., 329

Conn. 665, 671, 189 A.3d 99 (2018); Honulik v. Greenwich, 293 Conn. 698, 710, 980 A.2d 880 (2009). Summary

judgment shall be granted if, viewing the evidence in

the light most favorable to the nonmoving party, there

is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.

See Practice Book § 17-49; see also Rodriguez v. Testa,

296 Conn. 1, 6–7, 993 A.2d 955 (2010). The party moving

for summary judgment has the burden of showing the

absence of any genuine issue of material fact. See, e.g.,

Rodriguez v. Testa, supra, 6–7.

I

We first consider whether the passage of P.A. 15-183

establishes that contemporary standards of decency

have evolved, such that it is unconstitutional to transfer the case of a fourteen year old defendant from the

docket for juvenile matters to the regular criminal
docket under any set of circumstances. In advancing

this claim, the petitioner effectively asks this court to

apply P.A. 15-183 retroactively to all persons currently

serving an adult length sentence for a crime committed

at fourteen years of age. We decline to do so.

In 2015, the legislature passed P.A. 15-183, which,

among other things, as a general rule, raised the age of

a child whose case can be transferred from the docket

for juvenile matters to the regular criminal docket from

fourteen years to fifteen years. See General Statutes

§ 46b-127 (a). Shortly thereafter, this court concluded

that P.A. 15-183 applied retroactively to pending cases.

See State v. Nathaniel S., 323 Conn. 290, 292–93, 146

A.3d 988 (2016). We explicitly stated, however, that P.A.

15-183 did not apply to cases that had reached final

judgment, concluding that ‘‘we perceive no absurdity

in the fact that retroactive application of the act will

affect pending cases but not those that already have

reached a final judgment, as this will be true of most

retroactive amendments to procedural rules.’’ Id., 300.

That conclusion, of course, would apply in the context

of a habeas petition, which collaterally attacks a final

judgment.

At about the same time as the enactment of P.A. 15-

183 and our conclusion in Nathaniel S., we held, in a

death penalty case, that a statute could apply retroactively—even to cases that had reached final judgment—

if society’s standards of decency had evolved so that a

previously constitutionally valid criminal punishment

now violated the state constitution’s prohibition on

cruel and unusual punishment. See State v. Santiago,

318 Conn. 1, 118–19, 139–40, 122 A.3d 1 (2015). In Santiago, the defendant was found guilty of capital felony

for a murder committed in December, 2000, and was

sentenced to death. Id., 10–11. During the appeals process, our legislature passed No. 12-5 of the 2012 Public

Acts (P.A. 12-5), which prospectively banned the death

penalty in all cases. See General Statutes §§ 53a-35a,

53a-45, 53a-46a, 53a-46b and 53a-54a; State v. Santiago,

supra, 11–12. The defendant sought review of whether,

‘‘although his crimes were committed prior to the effective date of [P.A. 12-5], that legislation nevertheless

represent[ed] a fundamental change in the contemporary standard[s] of decency in Connecticut . . . rendering the death penalty now cruel and unusual punishment . . . .’’ (Internal quotation marks omitted.)

State v. Santiago, supra, 12. In light of the passage of

P.A. 12-5, this court reexamined the constitutionality

of the death penalty pursuant to the state constitution,

focusing on the principle that, ‘‘in determining whether

a particular punishment is cruel and unusual in violation of [state] constitutional standards, we must look

beyond historical conceptions to the evolving standards

of decency that mark the progress of a maturing society.’’ (Internal quotation marks omitted.) State v. Santiago, supra, 43, quoting State v. Rizzo, 303 Conn. 71,
187–88, 31 A.3d 1094 (2011).

We explained in Santiago that, to determine whether

standards of decency are evolving, we rely on five objective criteria: (1) historical development of the punishment at issue; (2) legislative enactments; (3) the current

practice of prosecutors and sentencing judges or juries;

(4) the laws and practices of other jurisdictions; and

(5) the opinions and recommendations of professional

associations.5 See State v. Santiago, supra, 318 Conn.

52; see also State v. McCleese, 333 Conn. 378, 407,

A.3d (2019). On the basis of these criteria, this

court concluded that the prospective repeal of the death

penalty, coupled with the fact that only one person had

been executed in this state since 1960, demonstrated

that contemporary standards of decency had evolved

such that the imposition of the death penalty on inmates

convicted under the repealed death penalty statutory

scheme violated the state constitution’s prohibition

against excessive and disproportionate punishment.

See State v. Santiago, supra, 139–40. Therefore, we

concluded, P.A. 12-5 applied retroactively, and all sentences of death are now reduced to life imprisonment

with no possibility of release, even in those cases that

had long since gone to final judgment.6

Id.

The petitioner asks us to extend the rationale of Santiago to the circumstances of the present case, specifically, that we conclude that P.A. 15-183 indicates that

standards of decency have evolved and that P.A. 15-

183 applies retroactively to all persons currently serving

an adult length sentence for a crime committed at fourteen years of age. We disagree that the rationale of

Santiago extends to the petitioner’s claims and emphasize that the circumstances presented in Santiago were

extraordinary. First, as both this court and the United

States Supreme Court separately have recognized,

‘‘[d]eath is different.’’ State v. Rizzo, 266 Conn. 171,

226, 833 A.2d 363 (2003); see also California v. Ramos,

463 U.S. 992, 998, 103 S. Ct. 3446, 77 L. Ed. 2d 1171

(1983) (recognizing ‘‘the qualitative difference of death

from all other punishments’’). Second, in Santiago, this

court was confronted with legislation that simultaneously banned all executions prospectively, yet preserved the sentences of death for those whose offenses

had been committed prior to a particular date. By contrast, P.A. 15-183, codified as amended at General Statutes § 46b-127, merely establishes, as a general rule,

that transfers of cases involving fourteen year old defendants to the regular criminal docket are barred. Under

other provisions of the current statutory scheme, however, there are circumstances, albeit rare, in which the

case of a fourteen year old defendant may be transferred

to the regular criminal docket. For the reasons set forth

more fully herein, we conclude that transferring the

case of a fourteen year old defendant to the regular

criminal docket comports with our evolving standards

of decency and, therefore, does not violate the constitu-
tion of Connecticut.

Our application of the five criteria set forth in Santiago to the petitioner’s claim confirms our conclusion.

Historically, public policies guiding the treatment of

fourteen year old defendants have varied over time,

particularly as they pertain to children who commit

serious offenses like felony murder. Unlike the steady

400 year decline in the acceptability of imposing the

death penalty, the treatment of criminal defendants who

are children has fluctuated between policies favoring

the transfer of the cases of such defendants to the

regular criminal docket and those favoring retention in

the juvenile justice system. See State v. Santiago, supra,

318 Conn. 53–54. See generally E. Cauffman et al., ‘‘How

Developmental Science Influences Juvenile Justice

Reform,’’ 8 U.C. Irvine L. Rev. 21, 33–34 (2018) (‘‘[R]ising

juvenile crime in the latter half of the twentieth century

. . . [gave] rise to the ‘get tough’ policy agendas across

the country. . . . [A]s the fear of adolescent crime subsided in many states, the pendulum swung back in favor

of judicial discretion. . . . Presently, juvenile transfer

policies vary from state to state.’’ [Footnotes omitted.]).

Therefore, the current shift toward the retention of

more fourteen year olds in the juvenile system as evidenced by P.A. 15-183, although relevant to the question

of whether standards of decency have evolved, carries

less weight than did P.A. 12-5.7 As the habeas court in

the present case observed, ‘‘[t]he legislature is free to

meander as long as its path stays with[in] constitutional bounds.’’

‘‘[T]he clearest and most reliable objective evidence

of contemporary values is the legislation enacted by

the country’s legislatures.’’ (Internal quotation marks

omitted.) Atkins v. Virginia, 536 U.S. 304, 312, 122 S.

Ct. 2242, 153 L. Ed. 2d 335 (2002); see also State v.

McCleese, supra, 333 Conn. 407; State v. Santiago,

supra, 318 Conn. 59–60. Our detailed review of P.A. 15-

183 reveals that, although the changes effected by

the act certainly reflect our law’s ongoing movement

toward a juvenile justice system that is adapted to

the unique needs and vulnerabilities of children, it

allows some transfers, albeit under very narrow circumstances, of the cases of fourteen year olds to the regular

criminal docket. Accordingly, contrary to the petitioner’s argument, P.A. 15-183 stops short of evidencing a

societal rejection of all such transfers.

In enacting P.A. 15-183, which, in relevant part,

amended General Statutes (Rev. to 2015) § 46b-127, the

legislature changed the process by which a child’s case

may be transferred from the docket for juvenile matters

to the regular criminal docket. Prior to the enactment

of P.A. 15-183, the case of a child aged fourteen and

older was automatically transferred to the regular criminal docket when the child was charged with a capital

felony, a class A or B felony, or felony arson. See Gen-
eral Statutes (Rev. to 2015) § 46b-127 (a) (1). Following

such transfer, at the state’s attorney’s request, the case

of a child charged with a class B felony could be transferred back to the docket for juvenile matters, but there

was no similar mechanism for those charged with a

capital felony or class A felony. See General Statutes

(Rev. to 2015) § 46b-127 (a) (2). A child at least fourteen

years of age charged with class C, D, or E felonies could

have his case transferred to the regular criminal docket

following a hearing to consider probable cause and the

best interests of the child and the public. See General

Statutes (Rev. to 2015) § 46b-127 (b) (1). Children who

were ages thirteen and under could not have their cases

transferred to the regular criminal docket under any

circumstances. See General Statutes (Rev. to 2015)

§ 46b-127.

The landscape for transfers changed with the passage

of P.A. 15-183. The act now allowed the automatic transfer of cases to the regular criminal docket only for those

cases in which the offense had been committed by a

child who had attained fifteen years of age. See General

Statutes § 46b-127 (a) (1). Children fifteen years old

and older continue to have their cases automatically

transferred to the regular criminal docket when they

have been charged with a capital felony, a class A felony,

or arson murder, but the legislature limited which class

B felonies subject a child’s case to automatic transfer.

See General Statutes § 46b-127 (a) (1) and (3). For many

class B felonies, children charged with those offenses

are now afforded the same hearing process as those

charged with class C, D, or E felonies: a child at least

fifteen years of age charged with these offenses may

have his case transferred to the regular criminal docket

following a hearing to consider probable cause and the

best interests of the child and the public. See General

Statutes § 46b-127 (a) (3) and (b) (1). The effect is

that, now, children aged fourteen years old and younger

cannot have their cases transferred to the regular criminal docket under § 46b-127. See General Statutes

§ 46b-127.

Nevertheless, the legislature left in place another procedural mechanism by which a fourteen year old’s case

can be transferred to the regular criminal docket. Specifically, pursuant to General Statutes § 46b-133c, when

a child who has been designated a serious juvenile

repeat offender8

is charged with a felony committed

when he was at least fourteen years old and the child

does not waive his right to a trial by jury, then the court

must transfer the child’s case to the regular criminal

docket. General Statutes § 46b-133c (a), (b) and (f). The

prosecutor initiates this procedure by requesting that

the proceeding be designated a serious juvenile repeat

offender prosecution and must show by clear and convincing evidence that such designation will serve the

public safety. General Statutes § 46b-133c (b). After

such designation, a serious juvenile repeat offender
prosecution shall be transferred to the regular criminal

docket only if the child does not waive his right to a

trial by jury. General Statutes § 46b-133c (f). If the child

does waive his right to trial by jury, then the proceeding

is held before the court. General Statutes § 46b-133c (c).

Significantly, the legislature amended General Statutes

(Rev. to 2015) § 46b-133c in 2015; see P.A. 15-84; the

same year that it amended General Statutes (Rev. to

2015) § 46b-127. See P.A. 15-183. The fact that the legislature looked at both provisions in the same year and

did not raise the minimum age for transfer under § 46b133c provides a strong indication that the legislature

intended to preserve this narrow exception to the general rule that the case of a fourteen year old cannot be

transferred to the general criminal docket.

It is clear that the legislature’s views on the appropriate punishment and procedural protections for children in the criminal context are changing and that it

now prohibits the transfer of most cases of fourteen

year olds charged with felonies to the regular criminal docket, but the legislature stopped short of enacting

a complete ban under any circumstances. That is,

although a fourteen year old’s case will be transferred

only under very narrow circumstances and only when

the statutory procedural safeguards have been satisfied,

P.A. 15-183 does allow, within those limited circumstances, a fourteen year old’s case to be transferred to

the regular criminal docket. Because it left the procedure in place for a fourteen year old’s case to be transferred to the regular criminal docket if he is adjudicated

a serious juvenile repeat offender, P.A. 15-183 does not

signal a change in society’s evolving standards of

decency rendering unconstitutional the transfer of a

fourteen year old’s case to the regular criminal docket

under any circumstances.

Public Act 15-183 plainly is distinguished in this

respect from P.A. 12-5, which prospectively repealed

the death penalty under any circumstances, even for

the most heinous crimes and for the most violent repeat

offenders. See State v. Santiago, supra, 318 Conn. 60–61

(‘‘For the first time in our state’s history, the governor

and a majority of both legislative chambers have now

rejected state sanctioned killing and agreed that life

imprisonment without the possibility of release is a just

and adequate punishment for even the most horrific

crimes. For any future crimes, the death penalty has

been removed from the list of acceptable punishment

that may be imposed in accordance with the law.’’).

Public Act 12-5 did not leave in place procedural mechanisms by which even a few defendants could be sentenced to death going forward. The complete prospective abolition of the death penalty signaled to this court

that related standards of decency had quite clearly

evolved, rendering the death penalty a violation of the

prohibition on cruel and unusual punishment in the

constitution of Connecticut in all cases, regardless of
when the crime was committed. See id., 62. In contrast,

P.A. 15-183 did not eliminate the transfer of all cases

of fourteen year olds to the regular criminal docket.

Finally, ‘‘[a]lthough trends within Connecticut are the

most direct and relevant indicators of contemporary

standards of decency with respect to the state constitution, we also look to developments in our sister states

. . . for additional input.’’ Id., 77–78; see also State v.

McCleese, supra, 333 Conn. 399; State v. Rizzo, supra,

303 Conn. 190–91. When we do so, it becomes apparent

that transferring a fourteen year old defendant’s case

to the regular criminal docket is routinely done, especially in the instance of serious offenses. In fact, the

petitioner cites to only one state, New Jersey, which

has set fifteen years old as the minimum age at which

a child may have his case transferred to the regular

criminal docket, prohibiting the cases of fourteen year

olds from ever being transferred to the regular criminal

docket, even for crimes of murder. See N.J. Stat. Ann.

§ 2A:4A-26.1 (c) (West Cum. Supp. 2018). One additional

state, New Mexico, has a minimum transfer age of fifteen, but fourteen year old defendants charged with

murder and tried on the docket for juvenile matters,

can receive adult length sentences. See N.M. Stat. Ann.

§§ 32A-2-3 (J) (3) and 32A-2-20 (2010). The parties do

not dispute that the remaining forty-eight states—

including Connecticut—allow for a fourteen year old’s

case to be tried on the regular criminal docket in at

least some circumstances. Accordingly, Connecticut is

in accord with the vast majority of states. By contrast,

as we noted in Santiago, although the United States

remains ‘‘an anomaly, the last remaining holdout in

a historical period that has seen the Western nations

embrace abolitionism as a human rights issue and a

mark of civilization,’’ nationally, ‘‘the number of states

eschewing the death penalty continues to rise.’’ (Internal quotation marks omitted.) State v. Santiago, supra,

318 Conn. 78.

II

Having concluded that the transfer of the petitioner’s

criminal case to the regular criminal docket for a crime

he committed when he was fourteen years old does

not violate the Connecticut constitution, the remaining

issue we address is whether the petitioner’s forty year

sentence violates the prohibition against cruel and

unusual punishment even after the provisions of P.A. 15-

84 made the petitioner eligible for parole after serving 60

percent, i.e., twenty-four years, of his original sentence,

which was imposed when he was fifteen years old. We

have recently rejected similar claims challenging the

length of a sentence imposed after a child was tried and

convicted on the regular criminal docket. See generally

State v. McCleese, supra, 333 Conn. 382, 409 (granting

of parole eligibility pursuant to P.A. 15-84 was adequate

remedy for seventeen year old sentenced to eighty-
five years for murder and related offenses); State v.

Williams-Bey, 333 Conn. 468, 471, 477, A.3d

(2019) (granting of parole eligibility pursuant to P.A.

15-84 was adequate remedy for sixteen year old sentenced to thirty-five years imprisonment for murder as

accessory); State v. Delgado, 323 Conn. 801, 802, 815,

151 A.3d 345 (2016) (defendant’s entitlement to parole

consideration pursuant to P.A. 15-84 was adequate remedy for sixteen year old sentenced to sixty-five years

imprisonment). Because the petitioner is now eligible

for parole pursuant to the provisions of P.A. 15-84, the

state constitution does not require a resentencing. See

General Statutes § 54-125a (f) (1).

We acknowledge that a forty year sentence is a significant amount of time. Felony murder, however, is one

of the most serious offenses that a person can commit

in our society. When the petitioner was initially sentenced to forty years with no possibility of parole, the

petitioner’s scheduled release would have been in 2037,

when he would have been in his mid-fifties. With the

enactment of P.A. 15-84, the petitioner will now be

eligible for parole in 2023, after serving twenty-four

years, sixteen years earlier than originally anticipated

and one year less than the mandatory minimum sentence for adults convicted of felony murder. See General Statutes §§ 53a-35a (2) and 53a-54c. At that time, the

petitioner will be in his late thirties. Unlike defendants

serving life sentences and functional life sentences with

no possibility of parole, the petitioner has a ‘‘chance

for fulfillment outside prison walls,’’ a ‘‘chance for reconciliation with society,’’ and hope for his future after

serving his sentence. Casiano v. Commissioner of Correction, 317 Conn. 52, 79, 115 A.3d 1031 (2015), cert.

denied sub nom. Semple v. Casiano, U.S. , 136

S. Ct. 1364, 194 L. Ed. 2d 376 (2016); cf. id. (life sentence

can include sentence that is functional equivalent of life

by leaving juvenile defendant ‘‘no chance for fulfillment

outside prison walls, no chance for reconciliation with

society, no hope’’ [internal quotation marks omitted]).

Finally, we observe that the petitioner requests that

his judgment of conviction be reversed, that his sentence that was imposed twenty years ago be vacated,

and that a new trial be ordered in compliance with

§ 46b-127. This requested relief is not practicable. The

petitioner seeks to have access to the juvenile justice

system and its associated rehabilitation programs, but

the petitioner, who is now approximately thirty-five

years old, is unable to participate in these programs

because of his age. As we recently observed in McCleese,

the inquiry of whether a child was incorrigible at the

time of sentencing is difficult to assess after the passage

of time. ‘‘[E]ven in cases in which only a few years have

passed, [i]t is difficult even for expert psychologists to

differentiate between the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the

rare juvenile offender whose crime reflects irreparable
corruption.’’ (Internal quotation marks omitted.) State

v. McCleese, supra, 333 Conn. 403; see also Graham v.

Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d

825 (2010). ‘‘The parole board, under P.A. 15-84, § 1 (f),

on the other hand, bases its decisions on more recent

evidence and more ascertainable outcomes . . . [and]

relies more on evidence of actual rehabilitation and

focuses more on the offender’s ability to succeed outside of prison at the most relevant moment—just before

he will, potentially, be released.’’ State v. McCleese,

supra, 403. At this point, once the petitioner becomes

eligible for parole, the parole board is the better venue

for relief. At the appropriate time, the parole board will

evaluate the petitioner for parole release by taking into

account various statutory factors, including ‘‘the age

and circumstances of [the petitioner] as of the date of

the commission of the crime or crimes, whether [the

petitioner] has demonstrated remorse and increased

maturity since the date of the commission of the crime

or crimes . . . lack of education or obstacles that [the

petitioner] may have faced as a child or youth in the

adult correctional system, the opportunities for rehabilitation in the adult correctional system and the overall

degree of [the petitioner’s] rehabilitation considering

the nature and circumstances of the crime or crimes.’’9

General Statutes § 54-125a (f) (4) (C).

For the reasons we have stated, the transfer of the

petitioner’s case to the regular criminal docket and his

subsequent sentencing do not violate the prohibition

against cruel and unusual punishment enshrined in the

Connecticut constitution.

The judgment is affirmed.

In this opinion ROBINSON, C. J., and PALMER,

McDONALD, D’AURIA and MULLINS, Js., concurred.

* August 23, 2019, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 The petitioner appealed from the judgment of the habeas court to the

Appellate Court, and we transferred the appeal to this court pursuant to

General Statutes § 51-199 (c) and Practice Book § 65-1.

2 The petitioner asserts three claims that we deem to be inadequately

briefed and, therefore, do not consider: an as-applied challenge, a substantive

due process challenge, and a procedural due process challenge.

3 The petitioner filed in the trial court a motion to correct an illegal

sentence pursuant to Practice Book § 43-22 on the basis of the same claim

that he has raised in the habeas petition at issue in this appeal. We have

explained that, ‘‘before seeking to correct an illegal sentence in the habeas

court, a defendant either must raise the issue on direct appeal or file a

motion pursuant to § 43-22 with the trial court.’’ Cobham v. Commissioner

of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001). A petitioner’s failure

to raise the issue on direct appeal or in a motion to correct an illegal sentence

could risk procedural default. See id., 39–40. The respondent, however,

during a hearing on the petitioner’s motion to correct an illegal sentence

on May 24, 2017, advised the trial court that the habeas court should be the

proper forum for the petitioner’s claim. Consistent with this position, the

respondent concedes that he ‘‘did not pursue a procedural default claim in

[his] motion for summary judgment or when arguing against the petitioner’s

motion for summary judgment.’’ Because the respondent expressly waived

the special defense of procedural default, the ordinary rule requiring the

petitioner first to seek relief through a motion to correct an illegal sentence

does not apply in the present habeas action.

4 The petitioner acknowledges that his appeal from the habeas court’s

denial of his motion for summary judgment was not a final judgment for

the purposes of appeal. The petitioner, therefore, concedes that the single

issue in the present case is whether it was error for the habeas court to
grant the respondent’s motion for summary judgment.

5 We do not consider the current practice of prosecutors and sentencing

judges as they are bound by the applicable statutes and do not have the

discretion to deviate. Therefore, in the present case, they are not an indication of contemporary understandings of applicable sociological norms. In

addition, the petitioner did not reference opinions and recommendations

of professional associations that relate to the transfer of a fourteen year

old child’s case to the regular criminal docket; nor did our research discover

any that addressed this specific issue.

6 We utilize the framework that this court applied in Santiago as the

analysis of the evolving standards of decency, as it is the linchpin in the

arguments of both the petitioner and the respondent. See State v. Santiago,

supra, 318 Conn. 18 n.14. We observe that the parties also employed the

factors we set forth in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).

If we assume that the Geisler framework is applicable to the ultimate issue

of whether transferring the case of a fourteen year old defendant to the

regular criminal docket and his subsequent sentencing to forty years imprisonment now constitute a violation of the Connecticut constitutional prohibition on cruel and unusual punishment, the Geisler factors are interwoven

into the evolving standards of decency analysis. See State v. Santiago, supra,

18 n.14.

7 We consider it significant that, in Santiago, we observed that this state

had executed only one person since 1960, and only after that person had

‘‘waived his right to further appeals and habeas remedies.’’ State v. Santiago,

supra, 318 Conn. 57, 58. By contrast, there is no indication that the transfer

of children’s cases to the regular criminal docket has ceased.

8 A serious juvenile repeat offender is ‘‘any child charged with the commission of any felony if such child has previously been adjudicated as delinquent

or otherwise adjudicated at any age for two violations of any provision of

title 21a, 29, 53, or 53a that is designated as a felony.’’ General Statutes

§ 46b-120 (10). A child may be adjudicated as delinquent if he has, while

under sixteen years of age, ‘‘(i) violated any federal or state law, except

section 53a-172, 53a-173, 53a-222, 53a-222a, 53a-223 or 53a-223a, or violated

a municipal or local ordinance, except an ordinance regulating behavior of

a child in a family with service needs, (ii) wilfully failed to appear in response

to a summons under section 46b-133 or at any other court hearing in a

delinquency proceeding of which the child had notice, (iii) violated any

order of the Superior Court in a delinquency proceeding, except as provided

in section 46b-148, or (iv) violated conditions of probation supervision or

probation supervision with residential placement in a delinquency proceeding as ordered by the court.’’ General Statutes § 46b-120 (2) (A).

9 As we observed in McCleese, the parole board ‘‘does not overlook the

value of’’ the offender’s age and hallmarks of adolescence in determining

‘‘whether he has demonstrated substantial rehabilitation,’’ and ‘‘should, for

culpability purposes, consider [his] age and circumstances as of the date

of the commission of the crime.’’ (Emphasis in original.) State v. McCleese,

supra, 333 Conn. 403 and 404 n.12.